In 2014, a young attorney named Elliot Slosar, who had taken on his case as he left law school, appeared on behalf of Cooper before the Indiana Department of Corrections Parole Board. Slosar asked the board to approve a pardon for Cooper, which would wipe his record clean. (Board approval is generally the first step in the pardon process in Indiana.) The board chairman at the time, Thor Miller, telegraphed his opinion during the hearing. “Basically, you were African-American and you were tall, and that was the only relationship you had toward the suspect, and the investigating detective was manipulating the witnesses with their identification,” said the board chairman, “It’s rather shocking.”
The main witnesses in the case tearfully apologized for having wrongly identified Cooper as the assailant. An online campaign gathered at least one hundred thousand signatures in support of seeking something that never had been done before in state history: a gubernatorial pardon based on actual innocence. The parole board voted unanimously to recommend that Governor Pence grant the request.
Years passed without Pence making a decision on the Cooper case. Three others who had petitioned for pardons without claims of innocence received them. It was possible that Pence declined to act on the Cooper request because a pardon would have given Cooper some advantage in a civil claim against the government, but Pence never explained his inaction. In 2015, The Indianapolis Star published a series of articles on the case. The reports left little room for doubt about what happened. The prosecutor who brought the case against Cooper asked for the pardon to be granted, and still Pence refused. Finally, he left it to the general counsel in the governor’s office to write a letter passing the buck to the court system. “Although the judicial system may not be perfect,” wrote Mark Ahearn, “given the extraordinary nature of Mr. Cooper’s request, we need to be certain the judicial process is complete and has been given every opportunity to address any error that may have occurred.”
What chance did Cooper have in the court system? Experts disagreed about what might happen if he found some way to petition for relief. Some thought previous agreements made to secure his release from prison barred further action. Others thought that a judge might show him mercy. However, no doubt could be raised about the fact that with his inaction, Pence had added three years to the process and that a new effort would be costly for a family that had already been financially ruined by Keith Cooper’s legal torment.
At best, Pence’s inaction could be seen as cruel but thoughtless. At worst, he was a powerful official willing to inflict pain on an innocent man in order to show he was tough on crime. It was also impossible to overlook the fact that Cooper was a powerless black man who had lived in a predominantly Democratic-voting, African American northern portion of the state. The reality was, however, that Pence’s staff treated the Cooper case not in human terms, but as a political problem. Aides were particularly cautious about dealing with the Cooper case once their boss had been named as Trump’s vice-presidential choice.
We have obtained emails sent by members of Pence’s staff that reflected caution and concern about handling the case. On July 25, 2016, Tim Harmon, an editorial writer at The Journal Gazette newspaper in Fort Wayne, Indiana, asked Kara D. Brooks, Pence’s press spokesperson, in an email: “Is the governor considering granting Cooper’s [pardon] request?” Harmon’s query provoked an email exchange among Brooks, Ahearn, the governor’s general counsel; and Matt Lloyd, Pence’s deputy chief of staff. Brooks’s idea was to tell the reporter that “the request for Keith Cooper is still under consideration,” and to ask the others if that was acceptable. Ahearn answered soon afterward, saying, “I’m good with it. Accurate and preserves all options. We just aren’t talking about it.” But Lloyd asked for a revision: “I think in the future we should say there is no change rather than no comment. It is still under consideration.” Brooks then settled on the following official reply: “The request for Keith Cooper is still under consideration.”
This type of studied inaction was repeated in southern Indiana in late 2014 and early 2015, where doctors and public officials detected a sudden rise in drug overdoses along with a surge in cases of human immunodeficiency virus (HIV) infection. The overdoses and infections affected drug abusers who had shared hypodermic needles. This practice is a well-established pathway for HIV infection, and is often associated with inner-city heroin addicts. Some of those who were infected in Indiana worked as prostitutes at highway truck stops, which meant that their customers could be exposed to HIV during sexual encounters.
Officials across the country often treated drug-related HIV outbreaks with benign disinterest. They regarded addiction as a moral failing and, since the people affected often engaged in criminal behavior, they were seen as unsympathetic. (This was the same attitude expressed by certain evangelical Christians when HIV, spread by sexual contact, devastated gay communities.) In this case, however, the epidemic emerged in sparsely populated, almost all-white Scott County, where the victims were injecting the opioid Opana. The location, the cohort, and the drug, which was not heroin, all cast the outbreak in a different light.
In January 2015 the Centers for Disease Control reported eleven new cases of HIV in the Indiana outbreak. CDC officials said that the rural area, with twenty-four thousand residents—about 20 percent live below the poverty line—would have been expected to report only five such cases in an entire year. Local and state officials joined the CDC in asking the governor for permission to distribute clean needles to addicts. While there was no specific mention of hypodermic needles in state drug laws, needles could only be obtained by prescription and otherwise were considered illegal drug paraphernalia. For months, Pence refused to waive the rules.27
In the same way that opponents of sex education feared that knowledge about sex promoted promiscuity among teenagers, opponents of clean needle distribution—addicts exchanged used ones for new—argued without basis that this would encourage addiction. (Scientific studies were stacked against both notions.) Months passed and the number of HIV infections ticked upward. Pence began to reconsider and said that he was praying about the issue. Finally, on March 24, 2015, the governor telephoned the sheriff of Scott County. Dan McClain, a tough cop and a Navy veteran, said the scope of the epidemic had made him change his own view of the matter. He was certain that offering clean syringes to drug users would save lives and help fight the outbreak.
“If you had asked me six months ago if I approved of needle exchange programs, I probably would have told you no,” McClain said. However, he had come to believe that needle exchange was “the only thing we can do to stop” the epidemic. Two days after speaking to the sheriff, Pence declared a state of emergency and issued a thirty-day waiver for the distribution of needles. “I am opposed to needle exchange as anti-drug policy,” Pence said. “But this is a public health emergency and as governor of the State of Indiana, I’m going to put the lives of the people of Indiana first.”
By the time Pence had completed his prayers and issued his proclamation many more lives were in jeopardy. Eleven new cases of HIV infection had grown to 77. A month later, the CDC reported 135 cases, and, as officials had warned, infections extended beyond intravenous drug users to sex workers in the county. Not included in the statistics was the likelihood that the drug users had been spreading hepatitis C, which often goes undetected. Shane Avery, a family doctor who treated some of the HIV patients, told reporters he was relieved that Pence had finally allowed the needle exchange, but he and other medical professionals said they doubted the spike in HIV cases was confined to one impoverished rural Indiana county. “There is no doubt in my mind that this has spread beyond the borders of Scott County,” Avery said. “Scott County is not an island.”
While the governor insisted his actions would be temporary and limited, the Republicans in the Indiana legislature stepped in. In April, they passed a bill that ended state regulation of local distribution of needles. Many who approved of the new law had previously supported the ban on ne
edle exchanges. They said they were simply being pragmatic. The exchange program in Scott County was working.
The Scott County crisis had presented Governor Pence with an acute public health emergency and a direct way to confront it, but his ideology had delayed making a necessary decision. The second major public health challenge of his tenure, a lead poisoning problem in the city of East Chicago, had simmered for years only to boil over in 2016.
A city of twenty-nine thousand people in the northwest corner of the state, East Chicago was predominantly African American and poorer than the rest of Indiana. It was also one of the few Democratic Party strongholds in the state. Like many of the communities that hugged the lakeshore south of Chicago, it had been home to a succession of heavy industries. A lead smelter, last run by a company called USS Lead, had operated in the West Calumet section of the city for more than a century. In the early 1980s, parts of West Calumet were declared a federal Superfund cleanup site after arsenic and lead were discovered in the ground. Both are known to cause cancer, and lead is especially dangerous to children who, once exposed, may suffer from low IQ and developmental and behavioral issues.
For years, city and state officials had checked the health of people who lived in West Calumet, paying special attention to residents of a predominantly African American housing project. In 2016, they detected a rise in the levels of lead in some residents’ blood, and officials provided funding to conduct further screening and assessment. Mayor Anthony Copeland, a Democrat, determined that the city had depleted most of the state and federal funding available to deal with the problem. He wrote a letter to Pence:
I am asking that as Governor, you declare that a disaster emergency exists in the USS Lead Superfund zone … in order to make additional state resources available to the city of East Chicago and the residents of West Calumet which are necessary to cope with the disaster, including securing housing for the residents of West Calumet. By this letter I ask you to pardon formal requirements, and make all needed State of Indiana resources available to adequately respond to this crisis which is impacting Hoosier families.
Copeland sought help with the closing of an elementary school close to the lead site and asked for $5 million in disaster relief. This money would help with the cost of expenses such as providing clean drinking water to replace supplies found to be contaminated. In this way, East Chicago’s troubles were similar to the infamous case of Flint, Michigan, where lead contamination in city water was blamed for a host of health problems. The Flint crisis, widely publicized, had been a political disaster for politicians in Michigan. Even though he used the magic word Hoosier in his pleadings, Mayor Copeland got nowhere with the governor. Pence refused to grant the petition, saying enough was already being done by local, state, and federal agencies.
As in the cases of Keith Cooper and the opioid users, Pence delayed, stayed far away, and took no action. All three cases involved the poorest segments of society: drug users, prostitutes, an African American man who was arrested for being black, a city to the north populated by black residents with muffled voices and little power. Pence was chastised locally for his inaction, but the controversy was contained. Once again, he managed to avoid broader scrutiny. Eventually, though, despite his efforts to maintain a low profile, Pence’s commitment to a Christian Right social agenda soon would reverberate on a national stage.
* * *
For years, evangelical activists had argued that Democrats and liberals may have seemed devoted to expanding the rights of certain minorities but were, instead, intent on restricting religious liberty. In this analysis, protections for gays and lesbians, abortion rights, and even testing regimes in public schools were official attacks on Christian family life. In the broader society, those who said “Happy Holidays” rather than “Merry Christmas” were prosecuting a war on Christmas. Pence and his allies believed they had to fight against changing mores, especially when the shifts seemed to favor the rights of gays, lesbians, and transsexuals.
Pence and other social conservatives feared that equal rights for gay and transgendered people added up to an assault on their own freedom. A year into his term as governor, a case emerged in Indianapolis that raised the issue of equal rights, guaranteed by the Constitution, against Pence’s own sense of religious freedom. This time, Mike Pence’s story went nationwide, and he would now be recognized for his adherence to a strict religious code that would not bend easily to the majority. One day in March 2014, Randy McGath and his wife, Trish, the owners of a bakery, 111 Cakery, which happened to be located in a traditionally gay neighborhood of Indianapolis, received an order by phone. The callers, couple Shane Laney and Mike Stephens, wanted a custom cake for their upcoming gay commitment ceremony. Citing religious grounds, the McGaths refused to make a cake for them. “There was zero hate here,” said Randy McGath. “We were just trying to be right with our God.”28
As news of the McGaths’ refusal spread, the 111 Cakery became the scene of protests and counterprotests. Pence landed squarely on the side of the McGaths, arguing that they had a right to discriminate against certain kinds of customers on the basis of religion. This position put Pence in a battle against the tide. With federal courts rapidly overturning both state and U.S. prohibitions on same-sex marriage, Indiana’s ban was sure to be voided. In October 2014, it was. Within months and with solid support from the governor, conservatives in the Indiana state legislature offered up a proposed law—the Religious Freedom Restoration Act (RFRA)—that would prohibit “a governmental entity from substantially burdening a person’s exercise of religion.” Plainly, the law meant that if people with a god like the McGaths’ wanted to deny service on the basis of a customer’s sexual identity, they had a right to do so.
Pence signed the bill—it came to be known by its acronym and pronounced “RIFF-ra”—on March 26 at an odd signing ceremony closed to the news media. In an official photograph commemorating the moment, Pence was surrounded by a tableau of people apparently intended to represent religious diversity in favor of the bill. Pence was seated and smiling at his desk, pen in hand, surrounded by half a dozen nuns in black habits, a man in a priestly collar peeking over the backs of the nuns, Franciscan monks in full-length robes, and a bearded man with a broad-brimmed hat, who appeared to be an Orthodox Jew. The governor’s aides refused to further identify those present.
The backlash was immediate and widespread. Business leaders, politicians, gay rights activists, and others declared that RFRA amounted to official sanctioning of illegal discrimination. Pence’s longtime ally Curt Smith, a Christian right activist, sought to quell the controversy by explaining the context. His argument was shocking. Permitting conservative Christians to discriminate against gay customers, he said, was similar to letting “a Jewish printer forego printing signs claiming the Holocaust was a lie or that his ancient ancestors killed Christ. We might agree an Indiana Muslim restaurant owner need not serve pork tenderloins, a Hoosier State delicacy.”29
Smith, a former campaign operative and Pence congressional aide, was so important to the governor’s political identity that he enjoyed veto power over some of the governor’s appointments. He also headed the conservative Christian Indiana Family Institute, which was influential with Pence’s core supporters. He had written about threats to Christianity in stark and idiosyncratic terms in a self-published booklet called Deicide—How Eliminating the Deity Is Destroying America. (On the cover, he emphasized the word Destroying by having it displayed in red.) “The opponents of our political work are committing deicide,” he wrote, “so their unbridled self-autonomy in all spheres, including human sexuality, will remain unchallenged.” The result, as he saw it, was a nation in terrible decline and suffering all around.
Approved and signed at the same time that national public opinion was shifting quickly in favor of gay rights, RFRA was a powerful example of a policy approved to satisfy an extremist constituency. Within a day of the signing ceremony, students at Indiana University marched while chan
ting, “No hate in Indiana.” Business leaders knew that angry reaction to similar laws in other states had led to travel bans and product boycotts. Fearing a similar backlash they flooded Pence’s office with calls of protest. Among them, the managers of Cummins Engine, who cultivated diversity in Pence’s hometown, said they didn’t want to alienate workers or customers, especially sports leagues and tourists. In a sign of what could come, the University of Southern California announced it would no longer send sports teams to Indiana. The National Collegiate Athletic Association, which was about to host basketball’s Final Four championship tournament in Indianapolis, issued a statement that criticized RFRA.
As in most states, major business leaders in Indiana leaned toward the GOP on most issues. However, some had expressed private concerns about Pence ever since he declared his candidacy for governor. He was, they feared, inexperienced as an executive and captive to extreme elements of the religious Right. Passage of RFRA confirmed this fear and provoked one of the state’s top business leaders, Bill Oesterle, to break publicly with the governor. Oesterle ran the online home services company Angie’s List, which is based in Indianapolis. Angie’s List would postpone a $40 million expansion in the state, he announced. Mayors across the country, including New York and San Francisco, Portland and Washington, banned or curtailed official travel to Indianapolis. Even Greg Ballard, the Republican mayor of Indianapolis, protested and said the city council would be considering a resolution to denounce RFRA. A Protestant denomination announced it would cancel its plan to hold a convention in Indianapolis if RFRA stood. “Our perspective is that hate and bigotry wrapped in religious freedom is still hate and bigotry,” said Todd Adams of the Christian Church (Disciples of Christ).
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